OPINION | EDITORIAL: Request on abortion

Not the other way around this time

Editor's note: Abortion is back in the news at the national level, and not just the national level. This week, the United States Supreme Court took up arguments in a case involving a Mississippi law that limits abortion rights. We had to find it in the archives, but we published this editorial on Sept. 30, 2020, and we republish today. Note well: An end to Roe v. Wade would not be the end of the world, nor even the end of abortions. But might remedy a legal mistake made in 1973.

Roe v. Wade "halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the issue."

--an interesting comment

YES, THAT was an interesting comment, made at a speech at NYU some years back. The speaker was Ruth Bader Ginsburg, before she was Madam Justice Ruth Bader Ginsburg. It must be noted she was always a supporter of abortion rights--or is that still Pro Choice? or something else today?--but she had a legal mind, and thought legal thoughts.

The idea that Roe v. Wade was a misuse of judicial power is not an extremist position, however much those who support abortion on demand might wish to make it so. David Brooks of The New York Times wrote a column arguing that very point a couple of years ago. Is David Brooks now the definition of extremism?

Now that the president and the U.S. Senate are of the same party, and are nominating and confirming judges, Roe v. Wade is back in the news, with some in the commentariat predicting that the law of the land will fall. Perhaps immediately, if not sooner.

Something--such as the Court's recent history--makes us think that very much doubtful. This bench likes to punt no matter the field position. This chief justice likes to punt on third down. Stare decisis! is always the preferred audible.

But a friend shared his thought experiment with us the other day: What if, with this newer court, a case wound up taking on Roe, and the United States Supreme Court changed the 1973 ruling? What would happen?

Well, for starters, the United States wouldn't be the only nation among the western democracies that has legal abortion forced on it by judicial fiat instead of the voters, or at least their elected representatives in various statehouses. But that doesn't mean that abortion would disappear. No matter what some bumper stickers might say--bumper stickers for either side--it's not that simple. Or simplistic.

Instead, the matter would go back to the states, where it should have been all these years, for more debate.

Americans love to argue. And many Americans love to argue about this subject. That's how many issues are decided over the years: by debate, consideration of the pros and cons, and a conservative look at how various laws affect We the People over time. That sort of action may take longer to work, but once it catches, it sticks.

What the Court did in 1973 was bypass all that and force legalized abortion upon the states. Which gave rise to not just protest, but pique. The 50 labs of democracy weren't allowed to experiment. Instead, the court found a new right and dubbed it the Law Of The Land.

Funny, but history doesn't necessarily abide by judicial rulings. Which is why Dred Scott didn't put an end to the slavery debate.

Back to our friend's thought experiment: If Roe was somehow overturned by a newer, more conservative Supreme Court, the debate might break up and disperse to the state capitals. Yes, some of the more conservative states might take a more suspect view of the act, and pass laws more in line with what its people think. That is, perhaps some states would decide that abortions weren't a good use of taxpayer money.

And for the record, yes, taxpayer money is used these days, even with a Hyde Amendment that "prevents" federal funding from going to abortion doctors/clinics/Planned Parenthood. Every state has the option of using its funds for abortion coverage, and some do. Medicaid supplements a lot of this. But even if funds are moved from one ledger item to another in government work, we all know that money is fungible.

Then again, there will most definitely be more liberal states that pass fewer restrictions on abortion--as they seem welcome to do by the courts already. Even cities might take up the matter. (Is Bill de Blasio still bragging that New York City was the first city to fund abortion procedures?)

Perhaps, eventually Americans would no longer defer stable settlement of the issue, to use Madam Justice Ginsburg's words. Or perhaps abortion would remain a state issue and a state debate, where it can be contested, laws adjusted, and people moved to action depending. As Americans do so often.


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